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Tuesday, December 04, 2007

Adam Key, Pat Robertson's Finger, and Federal Litigation

Adam Key is a Christian, a former professional wrestler, and, now, a former law student at Regent University. He also seems like an interesting guy, if something of a provocateur. Key upset the powers-that-be, including Regent president Pat Robertson, by posting on his Facebook page and on the university listserv a video still showing Robertson scratching his face with his middle finger. Key was first suspended and ordered to undergo a psychological evaluation, then expelled. These and stories describe his situation., And David Lat scored an exclusive interview.

Last week, Key filed a lawsuit in the Southern District of Texas against Regent and Robertson, alleging violations of his First and Fourteenth Amendment rights, a violaiton of a provision of the Higher Education Act, and various state tort claims, including defamation (Key alleges that Robertson told the media that Key had "manipulated" the video image of Robertson), breach of contract, and fraudulent inducement (he alleges that he was fraudulently lead to believe that Regent was an open intellectual environment that allowed for dissent in public debate, that it was not at the mercy of Pat Robertson, and that it would not punish a student for engaging in political expression).

This all makes a fun story. as it always seems to when Robertson enters the public debate. The Complaint even quotes several of Robertson's more infamous remarks. And Key is a unique enough figure that he would make a fine addition to the rogue's gallery that forms the pantheon of First Amendment heroes.

Unfortunately for Key, this lawsuit has no chance.

First, I am not sure the Southern District of Texas is the proper venue for this case. Key lives in Texas and his venue argument appears to be that Regent sent recruiting letters to him in Texas that convinced him to apply and attend the school and that his dissenting views would be welcomed and tolerated. I suppose this might work for the fraudulent inducement claim, because the letters sent to Texas are the inducements. But venue looks to where "a substantial part of the events or omissions giving rise to the claim occurred." And for all his other claims, the key events or omissions occurred in Virginia. At the very least, venue seems more appropriate in Virginia and this could be a candidate for a discretionary transfer.

Second, the constitutional claims fail because there is no allegation (or event mention) anywhere in the complaint about state action. In fact, in ¶ 10, Key expressly describes Regent as a "private college." Clearly neither Regent nor Robertson is a state actor (Regent is a religious entity, so it being a state actor would be troubling), so it is not subject to constitutional restrictions.

Third, Key attempts a claim under the Higher Education Act fails because the provision under which he sues cannot be enforced through a private right of action. Section 1011a reflects an effort by Congress to get private universities to conduct themselves in accordance with the First Amendment (and as public universities must) in punishing students for protected on-campus expression and assembly. But I doubt this section is enforceable by private lawsuit. The provision explicitly describes itself as reflecting "the sense of Congress" that students at private universities should not be sanctioned for protected speech; that is not the type of rights-creating language the Court looks for in deciding whether to find an implied right of action. A Westlaw search in the ALLFEDS database found no cases even mentioning § 1011a. That should be a pretty good hint that this provision does not provide a basis for a private civil action.

Interestingly, Key's best argument may be that Regent is acting in violation of its ABA-imposed obligations to comport its rules to ordinary First Amendment standards, in terms of punishing students. So he might be better served by making arguments to the ABA the next time Regent is up for re-accredidation. But he is not likely to get very far with this lawsuit.

Posted by Howard Wasserman on December 4, 2007 at 03:57 PM | Permalink


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Key has no case.

1. Improper venue.

2. Regent is not a state actor. His First Amendment claims cannot be bootstrapped onto federal financial aid. Nor will an argument based on ABA 211 prevail as Regent has the right to enact behavioral standards for its students.

Key was given multiple opportunities to do the right thing (take down the picture, not bring a taser to school, et cetera) but instead he repeatedly choose the hard road. It's as though he is seeking attention and conflict.

3. Fraudulent inducement and breach of contract claims are equally spurious, as they rest on 1 and 2.

Posted by: scientismo | Jan 7, 2008 1:33:28 AM

Thank you Mr. Wasserman -- that was very helpful. Sometimes I need to be reminded that effective liberty such as the right to political expression without consequences (vaguely defined, I know, but applying it to the case here of out-of-the-workplace, mainstream expression) is provided only by convention and not law whether constitutional or statutory.

Posted by: Therefore | Dec 12, 2007 10:58:40 PM

Answering your last question first: Yes, a private business can fire you for having a Republican bumper sticker or for just about any other reason relating to your expression.

Yes, there are many situations in which private entities are deemed state actors and thus become subject to the First Amendment. These typically involve some close connection between the private entity and the government or the government somehow being involved in the speech-restricting decisions/actions of the private entity. But none of those situations are present with respect to Regent Law School. The mere receipt of government funds does not, without more, convert the private entity to a government actor (otherwise every single college and university except, I think, Bob Jones, would be a state actor).

As for union organizing, that is protected by statute (the National Labor Relations Act), not by the First Amendment. Similarly, the government could condition the receipt of federal funds on universities comporting themselves according to the First Amendment. But again, that would be a statutory claim. And, in any event, Congress has not done so.

Posted by: Howard Wasserman | Dec 12, 2007 9:39:35 PM

Could someone enlighten me on the status of the First Amendment as it applies to private censorship? I recognize that the amendment is a protection against state action. But aren't there circumstances where it is applied to private action? For instance, isn't union organizing protected as long as it doesn't interfere with the workplace? Aren't private institutions sometimes restricted due to the requirements of some types of Federal funding? Can a private business fire me for having a, say, Republican bumper sticker? I think that one is currently percolating in the courts but I could be wrong.

Posted by: Therefore | Dec 12, 2007 9:18:06 PM

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